Citation: R v Mark Joseph Smith [2008] NSWDC 23
Court: District Court of New South Wales
Date: 12 March 2008
Judge(s): Norrish QC DCJ
Background
The accused, a former police officer, faced three counts of false swearing before the Police Integrity Commission, alleged to have occurred in May and August 2003. Before his arraignment on the indictment, a question arose as to whether he was fit to stand trial. The Court ordered a fitness inquiry under the Mental Health (Criminal Procedure) Act 1990.
The accused had a significant medical history. He had been found to have an arteriovenous malformation (AVM) in his brain, and in November 2004 underwent surgery to remove it. Following complications, including a haemorrhage and a second operation, he developed ongoing neurological and cognitive impairments. His condition included memory difficulties, anxiety, depression, and vulnerability to stress.
Three medical experts gave oral evidence at the inquiry, including two retained by the defence and a professor of neuropsychiatry retained by the Crown. Their reports addressed whether the accused's conditions prevented him from meeting the minimum mental standards required to stand trial.
Legal Issues
- Whether the accused satisfied the minimum standards for fitness to be tried as set out in the Presser test.
- Whether amnesia or memory loss arising from organic brain damage can, of itself, constitute unfitness to be tried.
- What procedural accommodations, if any, would be required during trial given the accused's ongoing impairments.
Decision
The court applied the Presser test, derived from R v Presser [1958] VR 45 and confirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230. That test asks whether the accused has sufficient capacity to understand the charges, follow the proceedings in a general sense, understand the effect of evidence given against him, and communicate his version of events to counsel. The test does not require the accused to be capable of mounting an able defence.
On the medical evidence, the court found that the weight of expert opinion, aside from one dissenting practitioner, supported the conclusion that the accused met all seven criteria derived from the Presser test. The court accepted that the accused could understand the proceedings, communicate with his lawyers, and convey his version of events, including by drawing on secondary sources where his memory was limited.
The court addressed the amnesia question directly, drawing on R v Drummond and R v Dennison. Memory loss arising from organic brain damage, even where it relates to events directly connected to the charges, does not render an accused unfit to be tried. An accused with amnesia can still rely on secondary sources to construct instructions and a version of facts, and a trial judge can give appropriate directions in the accused's favour.
The court acknowledged that the accused's conditions might generate sympathy, and noted that questions of whether to prosecute and what sentence might be appropriate if convicted remained for the relevant authorities and the trial court to consider. Those conditions, however, did not meet the threshold for unfitness.
Orders Made
- The accused was found fit to be tried.
- Any future proceedings were to include provision for one-on-one assistance for the accused during the hearing, suitable breaks and adjournments to help him process evidence, and a mechanism for further fitness applications if an acute episode arose during the trial.
Key Takeaways
- The Presser test, requiring an accused to meet minimum standards of understanding and communication rather than the capacity to mount an able defence, was confirmed as the applicable standard for fitness inquiries in New South Wales.
- Amnesia or memory loss arising from organic brain damage, even where it concerns events directly underlying the charges, does not of itself render an accused unfit to be tried under the Presser test.
- Where an accused suffers memory loss, the court in Drummond recognised that the accused may draw on secondary sources to develop instructions and a version of facts for counsel, and that a trial judge may give appropriate directions in the accused's favour.
- A finding of fitness does not preclude the court from imposing procedural accommodations during trial, such as breaks, adjournments, and one-on-one assistance, to ensure the accused can meaningfully follow the proceedings.
- The suitability of prosecution and questions of sentencing upon conviction are separate from the fitness inquiry and remain for the prosecuting authorities and the trial court to address.
Legislation and Cases Referenced
Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 8, 10, 11, 12
Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230
- Ngatayi v The Queen (1980) 147 CLR 1
- Eastman v The Queen (2000) 203 CLR 1
- R v Clarkson [2007] NSWCCA 70
- R v Rivkin (2004) 59 NSWLR 284
- R v Drummond (NSWCCA, 27 May 1994, unreported)
- R v Dennison (NSWCCA, 3 March 1998, unreported)